Legal questions abound over same-sex marriages in Michigan

8:08 AM, March 24, 2014

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Detroit Free Press Staff Writers

Same-sex marriage in Michigan: A landmark day: Clerks began issuing marriage licenses today to same-sex couples, following a ruling Friday by U.S. District Judge Bernard Friedman that struck down Michigan's voter-approved ban on gay marriage as unconstitutional.

Jennifer and Alexi Chapin-Smith are married at the Washtenaw County Clerk's Office in Ann Arbor on Saturday. 'This is our fourth wedding actually,' Jennifer Chapin-Smith said. 'We're already married in the eyes of God and our religious community, our family, friends and our neighbors. It's just the state of Michigan that wouldn't recognize reality. It's frustrating.' / Photos by Kimberly P. Mitchell/Detroit Free Press

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They popped the champagne corks, paid the $20 marriage-license fee and said their ‘I do’s.’

But scores of same-sex couples who married over the weekend are still left wondering: Are we really married, or not?

“We really don’t know,” said Jennifer Chapin-Smith, 36, of Ann Arbor, who was eager to announce her marriage to Alexi Chapin-Smithat her Sunday Quaker meeting, which is akin to a church service. “Everybody at first said, ‘Congratulations.’ Then they said, ‘What’s going on?’ I said, ‘I really don’t know.’ ”

That’s the predicament roughly 100 couples are in following an order late Saturday from the U.S. Sixth Court of Appeals, which issued a temporary stay of a lower court ruling that declared Michigan’s ban on same-sex marriage as unconstitutional. The order didn’t come down until late in the day — well after roughly 300 same-sex marriage licenses had been handed out across Michigan.

The state, meanwhile, still won’t say if it recognizes the marriages or not. Neither Attorney General Bill Schuette, who requested the stay, nor Gov. Rick Snyder would say Sunday whether Michigan plans to recognize the marriages. They are waiting further direction from the 6th Circuit, which granted a temporary stay until Wednesday while it considers whether to grant a permanent stay pending the appeal process.

No hearing has been scheduled.

“The governor and administration are not weighing in on these issues at this point,” Wurfel told the Free Press. The issue is “currently under the courts and judicial process,” and “we await that direction.”

Asked what direction state and local officials are being given in cases in which same-sex couples seek to immediatly assert marital rights on issues such as adoption or spousal benefits, Wurfel said such claims take time to process and the Snyder administration considers such issues on temporary hold, pending further direction from the courts.

Some legal experts say the state should immediately say how it plans to treat the same-sex marriages, noting too many couples are in legal limbo and deserve to know where they stand.

That “creates even more uncertainty for those families who were married as to whether or not they have any rights or not,” said Salt Lake City attorney Laura Milliken Gray, who is representing same-sex couples in Utah whose marriages were thrust into limbo.

In that case, more than 1,000 same-sex couples got married in Utah after a federal judge in December struck down as unconstitutional Utah’s ban on same-sex marriage. The judge in that case refused to grant a stay, as did the higher federal appellate court. But 17 days later, the U.S. Supreme Court intervened and issued a stay, stopping any more same-sex marriages from taking place.

Given what’s happened in Utah, Gray is urging Michigan’s same-sex married couples to move quickly to assert their married rights, including adoption and joint tax filing rights.

Jennifer Chapin-Smith is already on it. She and her spouse filed their state and federal income taxes at 4 p.m. Saturday, one hour before the 6th Circuit issued the stay. She noted that she and Alexi had previously married in Maryland in January of 2013 in a Quaker ceremony and got married in Michigan for the legal recognition here.

“This is our fourth wedding actually,” Jennifer Chapin-Smith said. “We’re already married in the eyes of God and our religious community, our family, friends and our neighbors. It’s just the state of Michigan that wouldn’t recognize reality. It’s frustrating. Why can’t the state recognize what is real and truthful?”

Beth Bashert, who married Lisa Bashert, her partner of 25 years on Saturday, shares that frustration. She noted that she opted not to get married outside Michigan because that would have made her “feel like a fugitive.”

The Basherts, meanwhile, are in a tougher legal quandary than other couples. She and her spouse had a big wedding with 70 people Saturday night at a friend’s house in Ypsilanti. There was a fancy wedding cake, champagne, food and flowers.

The one hitch: They didn’t turn their marriage form back into the clerk’s office.

“We’re going to submit it on Monday. But I just don’t know what our status is. Literally, I don’t know,” said BethBashert, who is trying to focus on the positive. “It was so powerful and so amazing to be married. I’m trying not to worry about it. I can’t control it. I just want to continue to feel good.”

Beth Bashert said she expects her marriage will ultimately be recognized.

“Whether it happens right now or whether it happens in awhile ... we’re going to have a legal marriage,” Bashert said, noting she’s used to living with uncertainty. “We’ve been in a legal limbo for 25 years ... I’d rather be in this limbo than one without being married.”

Dan Ray, a constitutional law professor at Thomas Cooley Law School, said the marriages that were performed before the stay was issued are valid.

“The state will undoubtedly say we will not recognize these marriages until the judgment becomes final,” Ray said. “But I think that they are going to continue to remain valid marriages.”

Clerks in Ingham, Oakland, Washtenaw and Muskegon counties opened their doors for same-sex couples seeking marriage licenses following a Friday ruling in Detroit by U.S. District Judge Bernard Friedman, who declared Michigan’s voter-approved ban on same-sex marriage unconstitutional. Schuette immediately appealed to the 6th Circuit, which didn’t issue a temporary stay until late Saturday.

That left a window of opportunity for many couples to get their marriage licenses and have weddings. Some, however, got only the licenses, but didn’t get married.

Ingham County Clerk Barb Byrum said Sunday she will be seeking the advice of county attorneys on whether same-sex couples who obtained their marriage licenses before the stay was issued but did not get married are in a legal position to have their ceremonies performed this week.

Some gay couples who got married Saturday said they expected some kind of legal setback, so raced to get married.

“We did it knowing that we’d be in this legal limbo, at least with the state government,” said Joseph Bissell, 33, of Lansing, who married his partner Justin Maynard on Saturday. “I’m sure there are some gay people who are mad today, but we’re just totally, really happy. The thing is, we all know how this is going to end. We’re going to win. The tide has turned. It’s just a matter of time.”

Bissell said he and Maynard never expected that as of Monday they would be able to share health benefits or file their taxes jointly. They expected, as he put it, a letdown in the immediate future. But the couple hopes to adopt children and want their future children to have the stability that marriage brings, he said.

It’s something Bissell said they’re willing to wait for.

The state has argued that it has a legitimate interest in preserving the traditional definition of marriage because — it contends — children thrive best when raised by married moms and dads, and there’s nothing irrational about striving to keep that family structure as the ideal.

It also has argued that the 2.7 million voters have already spoken on the issue of same-sex marriage, and their decision should stand. Michigan voters decided in 2004 that the definition of marriage in Michigan should only be a union between one man and one woman.

But just because the voters want something doesn’t make it legally right, said constitutional law expert Bob Sedler, a law professor at Wayne State University who supported the plaintiffs who fought to overturn Michigan’s ban on same-sex marriage.

“So what if the people voted for it,” Sedler said of the Michigan Marriage Amendment Act. “If it’s unconstitutional, it’s unconstitutional — whether the people voted for it or not.”